232. In this regard, on December 2, 2004, the recently appointed Constitutional Tribunal
issued a decision in response to a request by the President of the Republic in which it ruled
that “in order to suspend the effects of a parliamentary resolution, including No. 25-160,
adopted by the National Congress on November 25, 2004, owing to the supposed violation
of the Constitution, based on form or substance, the only action admissible is the action on
unconstitutionality that must be filed before the Constitutional Tribunal” (supra para. 99).
This meant that, if the domestic judges received an action for amparo against the decision
declaring the termination of the members of the Constitutional Tribunal or similar legislative
decisions, they were ordered to “reject it outright and not to admit it, because, to the
contrary, they would be hearing a case contrary to an explicit law and this would entail the
corresponding judicial actions” (supra para. 99).
233.
In fact, the members of the Constitutional Tribunal filed five remedies of amparo in
order to contest the legality of the decision by which they were dismissed and, in the five
cases, these amparos were rejected outright (supra para. 212). The reasoning given by the
judges of the amparo was the decision taken by the new Constitutional Tribunal (supra
paras. 102 and 104 to 107). Furthermore, it was proved that, in the case of several of the
remedies of amparo, a member of Congress intervened and reminded the judges hearing
these appeals that judges who admitted them could be subject to judicial actions or
disciplinary sanctions (supra para. 108). In this regard, it is clear that the decision taken by
the new Constitutional Tribunal prevented the judges who had been removed from making
use of the remedy of amparo in order to try and contest the legality and constitutionality of
the decision of Congress and, in this way, protect their rights.
234. In view of the foregoing, by express mandate of the new Constitutional Tribunal, the
action on unconstitutionality was available to the presumed victims. Regarding this action, it
should be underscored that, pursuant to the provisions of the Constitution of the Republic of
Ecuador in force at that time, the filing of this action required, either that it be supported by
the signature of 1,000 persons, “exercising their political rights,”279 or that it be supported
by a favorable report of the Ombudsman.280 It should also be pointed out that, the purpose
of this action was to examine the formal and substantial conformity of a norm or an
administrative decision with the Constitution,281 but it did not offer the possibility of
279
Cf. Article 277(5) of the Constitution of the Republic of Ecuador of August 11, 1998 (file of annexes to the
answering brief, tome I, folio 3708).
280
Cf. Article 277 of the 1998 Constitution of the Republic of Ecuador: Actions on unconstitutionality may be
presented by: 1. The President of the Republic, in the cases established in Art. 276(1). 2. The National Congress,
following a resolution by the majority of its members, in the cases established in subparagraphs (1) and (2) of this
article. 3. The Supreme Court of Justice, following a resolution by the Court in Plenary, in the cases described in
subparagraphs (1) and (2) of the same article. 4. The provincial councils or the municipal councils, in the cases
indicated in the same article. 5. One thousand citizens exercising their political rights, or any person following a
favorable report of the Ombudsman on its admissibility, in the cases of subparagraphs (1 and (2) of the same
article. Constitution of the Republic of Ecuador of August 11, 1998 (file of annexes to the answering brief, tome I,
folio 3708).
281
Cf. Article 276 of the 1998 Constitution of the Republic of Ecuador: The Constitutional Tribunal shall have
competence: 1. To examine and decide actions on unconstitutionality, in form or substance, that are filed
concerning organic and ordinary laws, decree-laws, decrees, ordinances, statutes, regulations and resolutions
issued by organs of the institutions of the State, and to suspend their effects totally or partially. 2. To examine and
decide on the unconstitutionality of the administrative decisions of any public authority. The declaration of
unconstitutionality shall result in the revocation of the decision, without prejudice to the administrative organ
adopting the necessary measures to preserve respect for the constitutional norms. Constitution of the Republic of
Ecuador of August 11, 1998 (file of annexes to the answering brief, tome I, folios 307 and 3708).
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